A GUIDE TO TORT FOR CONSTRUCTION PROJECTS
SARAH FOX 500 Words Ltd
Tort in Construction “The law of tort is concerned with conduct which cases harm to a party’s 1 personal, proprietary or financial interests. It is the law of wrongdoing”.
Torts allocate responsibility and provide remedies (often compensation) for careless conduct with causes harm. Defining torts can be difficult due to their sheer breadth. Moran says “torts are legally wrongful acts or omissions… [which] interfere with some legal right of the complaining party.”2 Uff says “Tort can be defined as a civil wrong independent of contract; or as a breach of a legal duty owed to persons generally.”3
Overview Liability in tort does not (generally) exist without proof of legally recoverable losses. There is a hierarchy of loss in tort, which does not exist in contract law: 1. 2. 3. 4.
the defect has injured a person or persons; the defect has caused damage to other property; the defect results in some part of the product being damaged; the defect reduces the value or quality of the product.
Only defects causing type 1 loss are always recoverable when considering losses arising on construction projects and from defective buildings. Other defects may be covered by your contract but not by the law of torts. The main torts are summarised below:4 Negligence
Negligence is the most important tort for several reasons: “it forms the cause of action in the majority of cases brought in tort; its scope is very wide; and it may also be an element in liability for other torts.”5 The tort of negligence is concerned with the careless infliction of harm or damage: “the omission to do something which a reasonable [person] guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which are prudent and reasonable [person] would not do.”6 The required elements are: a legal duty of care7 a breach of that duty which caused8 recoverable9 loss or damage. Careless conduct is conduct below that expected of the ‘man on the Clapham omnibus’, except for professional persons who owe a higher duty.10 Negligence covers not just careless conduct or behaviour towards an individual but also breaches of a duty owed to a class of persons. Duties can arise from both statute (e.g. Highways Acts, Occupier’s Liability Acts, Defective Premises Act) and the common law (classically in Donoghue v Stevenson 193211). The duty of care also extends to goods or materials produced or placed into circulation which are of a dangerous nature.
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Defective Premises
Section 1 of the Defective Premises Act 1972 provides that: “any person taking on work for the provision of a dwelling… owes a duty to [its employer] and to every person who acquires an interest (whether legal or equitable) in the dwelling; to see that the work which he takes on in done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.” Under the DPA occupiers can bring an action against anyone involved in the design or construction of a dwelling, whether consultants, suppliers or (sub)contractors. This duty cannot be excluded or contracted out of. Establishing a lack of care either in the manner of doing works or the selection/use of materials comes under the DPA and negligence.
Nuisance
The major limitations of the Act are that (1) it only applies to residential premises and not commercial properties; and (2) the limitation period is 6 years after the work was completed. Nuisance is the unlawful interference with a person’s use or enjoyment of land or some rights over or in connection with the land (or a neighbour’s land). There is some overlap between negligence and nuisance. Private nuisance allows individuals to bring a claim. The occupier needs to prove substantial interference so that the land cannot be enjoyed to its full extent, but not necessarily damage. Building operations inevitably cause inconvenience but are not an ‘actionable nuisance’ if they are reasonably carried out and all reasonable steps are taken to prevent undue inconvenience. Examples of acts which can be a nuisance include noise, smell, dust, damp, vibration, smoke, damage to foundations by tree roots, dumping of rubbish or other waste etc. but not interference with TV reception.12 Nuisance also covers interference of a temporary nature such as that from a construction site provided it is unusual, excessive or unreasonable. Damage is an essential element in this action. Defences include consent, prescription (20 years use) and statutory authority (but excluding planning permission). Public nuisance is a criminal offence and generally only the state can pursue the offender. It is “an act or omission which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.”13 It is any act which inflicts damage, annoyance or inconvenience on a class of persons or people generally. An individual can bring a claim if that person has suffered foreseeable damage larger than the general public or a private right has also been interfered with. It includes obstruction of the highways. Statutory nuisance is set out in legislation – see e.g. s79 of the Environmental Protection Act 1990 relating to water or atmospheric pollution. Construction sites may be subject to notices from the local authority imposing requirements as to the way the work is carried out, under s60. Prior consent can be sought from the relevant authority under s61.
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Trespass to land
Trespass to land14 is the wrongful or unjustifiable entry onto the land in the possession of another (on, under or over), or remaining on land after permission to be there has ceased, however temporary or minor the intrusion. It also includes placing or throwing items onto the land. Trespass is actionable ‘per se’ i.e. does not require damage.15 It is actionable by persons in possession of the relevant land, or the landowner where there is damage. It requires direct action by the perpetrator. Examples of trespass include passing over the land16 or fixing items to the land. Although airplanes do not trespass into the space above land, cranes do and landowners can restrain their use with an injunction in certain cases.17
Rylands v Fletcher 1868
Defences include consent, statutory right to enter, public rights of way, easements, necessity, an order under the Access to Neighbouring Land Act 1992, and an agreement under the Party Wall etc Act 1996. This is a strict liability tort where it is not necessary to prove negligence nor intent. The tort occurs when: “A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief it is escapes must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”18 The rule creates a duty on the occupier of a land to take care that things placed on her land do not escape and cause damage. The required elements are: a dangerous19 escape which causes damage the thing must have been brought onto the land the thing must be a non-natural user20 of the land. The available defences include consent, statutory authority, the unforeseeable independent act of a stranger, or an Act of God. 21
Negligent A person who gives advice or information knowing that the recipient of the Misstatement information will rely or is very likely to rely on the maker’s skill or ability, owes the recipient a duty of care. 22 This is a form of negligence liability. There is a defence if it was not reasonable to rely on the advice as a result e.g. when the adviser used an effective disclaimer. A claimant does not have to prove physical damage. The essence of this tort is that the adviser has assumed responsibility. This assumption of responsibility has been held to extend beyond consultants 23 to specialists24 and D&B contractors;25 but not necessarily to engineers.26
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Vicarious Liability
An employer is liable for the acts and omissions of her employees, provided they occur ‘in the course of employment’. The employer need not have been guilty of any wrongdoing. A test, known as the ‘Salmond Test’, determines which acts come within vicarious liability. It states that vicarious liability attaches to: (i) (ii)
wrongful acts authorised by the employer or wrongful and unauthorised modes of carrying out authorised acts.
Vicarious liability is a joint liability, so the Civil Liability (Contribution) Act 1978 applies. Occupier’s Liability
Although there are also statutory duties27, there is a tortious duty on occupiers to ensure their property is safe for visitors. It only applies to negligent activities carried out on the premises and not the state of the premises themselves: in Drysdale v Hedges [2012]28 the court held that where a landlord was not liable under the relevant Acts, it owed a duty to take reasonable care not to create an unnecessary risk of injury.
Employers’ Liability
In relation to trespassers29, the occupier owes a duty not to actively make the exercise of a public or private right of way dangerous. The sources for employer liability are (1) non-delegable duties; (2) statutory duties (see below); and (3) vicarious liability (see above). There are three non-delegable duties for employers.30 These are to use reasonable care to provide: competent staff, adequate materials and a proper system of effective supervision. To bring a claim, an individual has to establish the damage was caused by a breach of these duties. Claims can be reduced when the individual was also negligent (contributory negligence). The employer is not liable for the torts of independent contractors, provided reasonably competent contractors have been engaged.
Product Liability
This is a strict liability offence under the Consumer Protection Act 1987 allowing individuals to bring a claim for compensation arising from personal injury and damage to other property (but not the defective product itself).
Fraud/Deceit
The essence of fraud is that the person making a statement has no belief in its truth. It involves dishonesty, irrespective of motive or intention. Where there is a fraudulent misrepresentation then the injured party is entitled to claim under the tort of deceit.
Withdrawal of Natural Rights
A landowner must not interfere with the natural rights enjoyed by his neighbours e.g. a right of support for land (although not for buildings).
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Breach of Statutory Duty
Although a breach of statutory duty is primarily punishable under criminal proceedings, some Acts do permit a civil claim for damages for the same breach. To do so, requires you to cross five hurdles: (i) (ii) (iii) (iv) (v)
the individual comes within the class or category of persons which the Act is intended to protect; the loss or damage suffered is of a type intended to be prevented under the statute; the Act does not preclude civil liability for breach of its provisions; breach of the relevant statutory duty; and on the balance of probabilities the injury, loss or damage was caused by the breach of statutory duty.
Examples include the Defective Premises Act and Occupier’s Liability Acts (as above) and also s71 of the Health and Safety at Work Act 1974, which provides civil liability for breach of a statutory duty imposed under the Building Regulations, once enacted.
When considering claims in negligence and breach of statutory duty, the Compensation Act 2006 needs to be taken into account. This Act provides, at s1, that: “in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.”
The Author Sarah Fox (500 Words Ltd) developed this Guide. She has trained many construction professionals on why tort matters – especially as it underlies on the reasons behind the widespread use of collateral warranties and third party rights. She is a speaker and trainer who helps construction specialists write simpler contracts and understand complex ones. She is also author of the 500-Word Contract™. To find out how Sarah can help your contracts meet your preferred risk strategy call her mobile: 07767 342747 or email:
[email protected]
Further Resources Manson, K (1989) ‘Building Law for Students’. Owen, S (1998) ‘Law for the Construction Industry’ (2nd edition). Uff, J (2009) ‘Construction Law’ (10th edition). Chapter 14 Speaight, A (2010) ‘The Architect’s Legal Handbook’ (9th edition). Chapter 3.
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Architect’s Legal Handbook, p21 paragraph 1.01 Architect’s Legal Handbook, p21, paragraph 1.02. Construction Law , p461. Defamation is not included as it is less relevant in construction. Construction Law, p461 Blyth v Birmingham Waterworks Co [1856] 11 Ex 781 per Alderson J. There is no duty not to cause economic loss, although economic loss associated with damage to (other) property can be recoverable: Spartan Steel v Martin [1973] QB 27; and economic loss can be recovered in cases such as nuisance, trespass, and negligent misstatement. “Res ipsa loquitur” is a maxim meaning ‘the thing speaks for itself’ and can assist claimants in establishing causation where the exact mechanism is not known, e.g. Drake v Harbour and White [2008] EWCA Civ 25. Recoverable loss or damage is that which was reasonably foreseeable. “The history of all great improvements shows failure of those who embark upon them” Earle J in Turner v Garland (1853). Failure with an untried process may be consistent with the exercise of reasonable skill and care. This case established ‘the neighbour principle’ as a preliminary point of law (although Mrs Donoghue did not bring a claim or recover any damages) which changed the previous basis of claim i.e. judicial precedent. Hunter v Canary Wharf [1997] AC 655. Attorney General v PYA Quarries Ltd [1957] 2 QB 169. Trespass to person is the interference with a person’s right to security of his body to include battery (unlawful physical contact), assault (fear of battery) and false imprisonment. If there is serious damage then the offence of criminal damage may have been committed. E.g. scaffolding or ladders, Westripp v Baldock [1938] 2 All ER 799. E.g. Wollerton & Wilson Ltd v Richard Costain Ltd [1970] QB 479. Rylands v Fletcher [1866] LR 1 Ex 265 at 279. It needs to be foreseeable that a particular type of damage will occur as a result of the escape. Examples include water, petrol in car tank, explosives, poisonous tree overhanging other land, gas, electricity. Nonnatural use means a special use which increases the possibility of harm to others. It does not include use for the general benefit of the community. The escape of natural things (animal, rainwater) may be a nuisance or negligence. See Cambridge Water Co v Eastern Counties Leather PLC [1994] 2 WLR 53 for a recent review of this tort. As found in the House of Lords’ decision of Hedley Byrne v Heller and Partners Ltd [1964] AC 465, although liability was avoided as a result of a disclaimer. See also Caparo v Dickman [1990] UKHL 2. Such as the designer: Storey v Charles Church Developments Ltd (1995) 73 Con LR 1. Barclays Bank plc v Fairclough Building Ltd (1995) 44 Con LR 35 in which specialists where held liable for negligently spreading asbestos dust. Storey v Charles Church, cited above. Payne v John Setchell Ltd [2002] BLR 489 held that the engineer did not owe such a duty in relation to negligent design of the foundations; although Mirant-Asia Pacific Ltd v Ove Arup PIL [2005] PNLR 10 TCC held that engineers owed such concurrent duties. The Occupier’s Liability Acts 1957 (lawful visitors) and 1984 (trespassers and persons other than visitors). [2012] EWHC B20 (QB). Which are outside the scope of the Occupiers Liability Acts. Т Wilsons and Clyde Coal v English [1938] AC 57.
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